HKSAR v. Siu Wai Hei

DCCC 1149/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1149 OF 2010

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of unlawful sexual intercourse with a girl under the age of 13 years, contrary to section 123 of the Crimes Ordinance, Chapter 200, the maximum sentence for which is life imprisonment.

2.In summary around the 3rd March this year the defendant, through the internet, came to know the girl, who was aged 12 years and 8 months. On the 6thMarch the defendant invited the girl to meet him and took her to his home where they twice had consensual intercourse, the defendant wearing a condom on the first occasion only. Upon the girl’s father discovering what had happened a report was made to the police.

3.In passing sentence I have carefully considered the content of the reports. The background report portrays a somewhat innocent young boy who had no previous sexual experience (see paragraph 6 of the report). The report also states that fortunately the defendant improved his motivation towards his studies in middle school resulting in an Award for Progress for the year 2007-2008. However due to suffering from chronic nasal allergy the defendant had fallen ill requiring him to rest at home. As a consequence the defendant passed only 2 of 14 exams and now has to repeat Form 4 (see paragraph 4 of the report).

4.The report from Pik Uk however reveals a very different young boy who has viewed pornographic video clips from early secondary school, dated girls on the internet and had previous sexual experience with a teenage girl in Form 3 (see page 3 of the report). The report also reveals that from Form 4 the defendant’s truancy was getting worse and continued even after being granted bail in these proceedings. According to the Vice Principal of his school the defendant is deprived of learning motivation resulting in him failing his examinations (see pages 2 & 3 of the report).

5.There is no mention of the defendant suffering from chronic nasal allergy. I note Mr Chan says that the defendant had nose bleeds whilst in custody and that he was never asked why he did not go to school and therefore did not tell the officer. Under medical history the report notes the defendant has not suffered from any serious illness in the past, which was confirmed by his mother. Experience tells you that nearly any form of illness which might affect the defendant participating in the detention centre programme will result in the defendant being found not physically fit for detention in a Detention Centre. The defendant would appear to have been less than frank with the probation officer, in particular as to his sexual experience and the reason for not going to school.

6.I have carefully considered everything said by Mr Chan on behalf of the defendant together with the letters and certificates submitted today and on the last hearing, in particular those speaking as to his voluntary work in helping the elderly in Tsz Wan Shan.

7.I take into account the defendant’s young age 16, his clear record and plea of guilty, which plea has saved the young girl from giving evidence in court. I take into account he has been brought up by his mother, who suffers from psychiatric illness, which has resulted in her receiving in-patient treatment last year.

8.In my view the young must be protected (seeR v Taylor [1977] 1 W.L.R. 612). The defendant gave no thought to how old the girl was but clearly must have known she was very young. This is not a case of two young friends of similar age who eventually engage in sexual intercourse. Whilst the age difference is not as great as in many cases, there was not the slightest hint of any form of romance, sexual intercourse taking place the very first time they met and thereafter the defendant never saw the young girl again, making the excuse he lost his mobile phone and the computer was broken.

9.Notwithstanding the defendant’s young age I am satisfied a deterrent sentence is required. A deterrent sentence is required not only to punish the defendant but also to deter others from behaving in this way. The courts must impose sentences that will in a real way protect young children. I am satisfied in the circumstances of this case probation or community service is not appropriate. In so deciding I have not forgotten the need for individual justice, balancing policy considerations with those of the individual circumstances of the defendant (see HKSAR v LEUNG Pui-shan CACC 317/2007).

10.The report from Pik Uk concludes by saying that to help the defendant attain insight into his problems as well as correct his values of sexual behaviour, a term of disciplinary training coupled with statutory supervision is considered necessary. I agree with this conclusion and follow the recommendation that the defendant is more suitable for detention in a Detention Centre.

11.I am satisfied detention in a Detention Centre is in the best interests of the defendant’s rehabilitation. The defendant is sentenced to detention in a Detention Centre.